Adrienne Stermer v. Archer-Daniels-Midland Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-147

ADRIENNE STERMER

VERSUS

ARCHER-DANIELS-MIDLAND COMPANY
AND AMERICAN RIVER TRANSPORTATION COMPANY

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF ACADIA, NO. 08-6424
HONORABLE ELLIS J. DAIGLE, DISRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED WITH INSTRUCTIONS.

Lawrence N. Curtis
Lawrence N. Curtis, LTD.
(A Professional Law Corporation)
300 Rue Beauregard, Bldg. C.
Post Office Box 80247
Lafayette, Louisiana 70598-0247
(337) 235-1825
COUNSEL FOR PLAINTIFF-APPELLANT:
Adrienne Stermer

Koerner Law Firm
Louis R. Koerner, Jr.
Post Office Box 4297
Houma, Louisiana 70361
(985) 580-0350
COUNSEL FOR PLAINTIFF-APPELLANT:
Adrienne Stermer

Georges M. Legrand
Adam P. Sanderson
Mouledoux, Bland, Legrand & Brackette LLC
701 Poydras Street, Suite 4250
New Orleans, Louisiana 70139
(504) 595-3000
COUNSEL FOR DEFENDANTS-APPELLANTS:
American River Transportation Company
Agrinational Insurance Company

PICKETT, Judge.

A maritime employer appeals the trial court‟s awards of penalties and

attorney fees to a seaman for the employer‟s failure to pay maintenance and cure

for almost two and one-half years after the seaman was injured. Finding no

manifest error in the trial court‟s determination that the employer‟s failure to pay

maintenance and cure more promptly was arbitrary and capricious, we affirm the

award of penalties in the amount of $300,000.00 and the finding that an award of

attorney fees is warranted, but reverse the award of $150,000.00 in attorney fees

and remand to the trial court to receive evidence on the issue of attorney fees. We

award $10,000.00 in attorney fees for work performed on appeal.

FACTS

Adrienne Stermer began working for American River Transportation

Company (ARTCO) in November 2005 as a cook on motor vessels ARTCO

operated on the Mississippi River transporting barges between New Orleans and

St. Louis, Missouri. Ms. Stermer boarded the M/V COOPERATIVE

ENTERPRISE on September 21, 2007. She performed her usual duties on the

vessel twenty-four hours a day, seven days a week until October 18, 2007, when

she left the vessel and returned home due to injuries she claimed to have suffered

on October 9, 2007. By letter dated October 19, ARTCO notified Ms. Stermer that

her “recent complaints did not manifest itself [sic] in the service of the vessel” and

that it would not make voluntary payments for maintenance and cure. Then, by

letter dated October 22, 2002, ARTCO notified Ms. Stermer that it had concluded

its investigation into her alleged injury, that her “willful disregard for the truth . . .

demonstrate[d] an unacceptable standard of conduct,” and that her employment

was terminated.

Ms. Stermer filed suit against ARTCO, its insurer, Agrinational Insurance

Company, and Archer-Daniels-Midland Company, owner of the M/V

COOPERATIVE ENTERPRISE and ARTCO‟s parent company. She alleged that

she was a Jones Act seaman injured on October 9, 2007, while working in the

service of the M/V COOPERATIVE ENTERPRISE, that the vessel was

unseaworthy, that her dismissal by ARTCO was a retaliatory discharge, and that

ARTCO unreasonably refused to pay her maintenance and cure after she was

injured. She sought to recover lost wages, medical expenses, damages for pain and

suffering, negligent and intentional infliction of emotional distress, punitive

damages, and attorney fees.

On October 14, 2007, Ms. Stermer reported to Captain Thomas Jones that

she had injured herself on October 9, when the M/V COOPERATIVE

ENTERPRISE was facing up to a tow. According to her testimony and the

Injury/Illness/Near Miss Report completed by Ms. Stermer on October 14, she was

squatting in front of the lower half of the refrigerator in the galley cleaning

condiment bottles when the vessel faced up to the tow. As she was squatting, she

felt “a little jar to the boat,” lost her balance, and fell forward into the refrigerator.

She tried to grab a shelf in the refrigerator with her right hand to steady herself, but

her fingers went through the rack, and her right hand was pushed backward. Her

knees hit the floor at the bottom of the refrigerator, and she put her left hand down

on the floor to brace her fall. Ms. Stermer rolled on her legs to the right such that

she was sitting on her right ankle. She then got up, brushed herself off, and went

back to work. She experienced pain and swelling in her hands and right ankle for

which she took Advil.

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Ms. Stermer testified that she did not report the incident the day it occurred

because she did not think she was hurt and because she was afraid she might lose

her job. She further testified that she told David Glisson, an engineer on the

vessel, about the incident on October 14 because her hands and right ankle

continued to swell and she could no longer lace her shoes. She formally reported it

after Mr. Glissson reported what she told him to Randoll Inness, the pilot who had

been operating the vessel when she was injured. In her October 14

Injury/Illness/Near Miss Report,1 Ms. Stermer described where she was and how

the accident happened, stating, in pertinent part:

[B]ending of the knees in front of refrigerator cleaning out steak sauce
tray . . . Facing up we pumped [sic]. I lost my balance fell to my knees
grabbing the shelf, my [food handling] glove slipped off. My right
hand was pushed backwards towards forearm. I have been using ice
and taking Advil. Very little swelling now. But I don‟t have much
strength . . . my fingers are swollen the top of my hand and
completely around my wrist. A throbbing goes towards my elbow.

On October 17, ARTCO transported Ms. Stermer to shore and to the

Western Baptist Hospital in Paducah, Kentucky, for evaluation and treatment. Her

description of how she was injured and her complaints were consistent with the

report she completed on the vessel. After examination and x-rays, Ms. Stermer

was diagnosed with bilateral hand and wrist sprains and right ankle sprain. The

emergency room doctor prescribed and fitted her with bilateral wrist splints and an

ace wrap and air cast for her right ankle. The doctor also prescribed anti-

inflammatory medication and pain medication. Ms. Stermer returned to the vessel

and performed her duties but was relieved and transported to Baton Rouge. A

1
Ms. Stermer completed a revised report on October 17 and/or 18 due to technical errors.
In those reports, she essentially restated what she stated in her October 14 report.

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personal friend picked her up at the Baton Rouge airport and drove her home to

Krotz Springs.

As noted by ARTCO, Ms. Stermer‟s claim was “hotly contested” by Captain

Thomas Jones and Bobby Joe Stark, other ARTCO employees who were in the

galley at the time Ms. Stermer claimed she was injured. Both men repudiated her

claim that she was injured October 9 when the vessel was facing up to its tow.

Captain Jones testified that two bumps occurred when the vessel faced up and that

he was facing in the same direction as Ms. Stermer at that time. He further related

that Ms. Stermer was squatted in front of the refrigerator with the door open on the

first bump. When asked if she lost her balance, he stated that he did not see her

lose her balance, and he denied that she was “thrown” into the refrigerator, as she

testified in her deposition and at trial. Captain Jones later testified that nothing

happened to Ms. Stermer on the first or second bump. Captain Jones also testified

that Ms. Stermer appeared normal and did not complain of pain after the two

bumps.

Bobby Stark, a deckhand, was standing three feet from Ms. Stermer when

she claimed to have been injured. He described the bump as “casual” and “nothing

out of the ordinary.” He testified that “nothing ever occurred,” that Ms. Stermer

did not lose her balance, and that she was not knocked down.

Ms. Stermer continued having problems with her right hand, wrists, and

right ankle after leaving the M/V COOPERATIVE ENTERPRISE. On November

9, 2007, she sought treatment from Dr. Darrell Henderson, a plastic surgeon who

devotes sixty percent of his practice to the treatment of the hand, wrist, or forearm.

Ms. Stermer‟s description of the October 9 incident and her complaints to

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Dr. Henderson were the same she reported in her October 14 and 17 reports and to

the emergency room physician at the Western Baptist Hospital.

Initially, Dr. Henderson prescribed conservative treatment for Ms. Stermer,

and all her complaints but her right wrist improved. On January 16, 2008, an MRI

of Ms. Stermer‟s right wrist showed a scapholunate ligamentous tear with a

widening of the space between the scaphoid and lunate bones in her right wrist.

Dr. Henderson explained that a sprain is a tear or partial tear of a ligament which

can heal and not cause more problems. He further explained that the ligament may

also continue to tear and become a very serious problem as it did for Ms. Stermer.

According to Dr. Henderson, edema present in the bones around the scapholunate

area and the metacarpals was indicative of an acute injury to that area within a few

months before the MRI.

Beginning in February 2008, Dr. Henderson considered fusing

Ms. Stermer‟s right wrist as a treatment option but initially tried steroid injections.

The injections did not give Ms. Stermer lasting relief, and she underwent surgery

on May 11, 2010, to repair the scapholunate dissociation, a tear in the ligament

between the scaphoid and lunate bones of her right hand that resulted in the

rotation of these two bones. Dr. Henderson testified that the scapholunate

dissociation did not predate Ms. Stermer‟s October 9, 2007 injury because the

scaphoid and lunate bones did not rotate on examination when he initially

examined her. Dr. Henderson determined that she was at maximum medical cure

in March 2011 and assigned her a 35% permanent impairment of her right hand

and restricted her to light to medium work.

Though being continuously provided information concerning Ms. Stermer‟s

medical treatment and requests for payment of maintenance and medical treatment,

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including the surgery recommended by Dr. Henderson, ARTCO continuously

refused to pay maintenance and cure until March 2010. It did not approve the

surgery recommended by Dr. Henderson in February 2008 until May 2010, even

though Dr. Larry Ferachi, an orthopedic surgeon who performed an IME of Ms.

Stermer on June 8, 2009, at ARTCO‟s request, agreed with Dr. Henderson‟s

recommendation for surgery. Dr. Ferachi agreed that Ms. Stermer‟s description of

the October 9, 2007 incident was consistent with the injury she described to him

but disagreed with Dr. Henderson‟s opinion that Ms. Stermer‟s scapholunate

dissociation did not predate October 9, 2007. In his opinion, August 2006 x-rays

of her hand and wrist showed the condition existed at that time.

The trial court determined that Ms. Stermer proved she was injured as she

claimed on October 9, 2007, and awarded her the following damages:

Loss of past employee benefits $ 25,740.00

Loss of future employee benefits $ 73,922.00

Loss of past wages $ 133,054.00

Loss of future wages $ 204,231.00

Past pain and suffering $ 100,000.00

Future pain and suffering $ 100,000.00

The trial court also determined that ARTCO‟s refusal to pay Ms. Stermer

maintenance and cure for two and one-half years was arbitrary and capricious and

awarded her $300,000.00 in punitive damages and $150,000.00 in attorney fees. It

dismissed her claims of unseaworthiness and retaliatory discharge, finding she did

not prove those claims.

ARTCO appealed the judgment and assigned errors with the awards of

punitive damages and attorney fees. Ms. Stermer answered ARTCO‟s appeal and

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requested increases of all the amounts awarded to her by the trial court. After

consideration of ARTCO‟s assignments of error, she waived all her assigned errors

but those in which she asserted that the awards of punitive damages and attorney

fees should be increased. She also sought an award of attorney fees for work

performed by her attorney on appeal.

STANDARD OF REVIEW

When reviewing general maritime claims, Louisiana appellate courts apply

the manifest error standard of review. Milstead v. Diamond M Offshore, Inc., 95-

2446 (La. 7/2/96), 676 So.2d 89. Ms. Stermer‟s claims for maintenance and cure,

penalties, and attorney fees are general maritime claims; therefore, we cannot

reverse a factual determination of the trial court unless no reasonable factual basis

exists in the record for that determination and the record shows that the finding is

clearly wrong or manifestly erroneous. Stobart v. DOTD, 617 So.2d 880

(La.1993). When reviewing a trial court‟s factual determination, appellate courts

focus on whether the finding is reasonable, not whether it is right or wrong. Id. If

the trial court committed legal error, however, the appellate court performs a de

novo review. Smith v. Tidewater, Inc., 04-195 (La.App. 4 Cir. 3/2/05), 918 So.2d

1, writs denied, 05-2361, 05-2441 (La. 4/17/06), 926 So.2d 510, 513, respectively.

DISCUSSION

“Maintenance and cure” is an ancient duty imposed upon the
owner of a ship to provide food, lodging and necessary medical
services to seamen who become ill or injured during service to the
ship. Recovery is not dependant [sic] upon negligence of the vessel
or the owner and the burden of proof in seeking maintenance and
cure is relatively light. Id. In addition, generally, a seaman need only
prove that the injury arose during his service of the vessel. The
seaman does not have to prove a causal connection to his duties. The
right to maintenance and cure exists regardless of fault. The remedy
is essentially curative in nature and is not intended as compensation
for injury. The right to maintenance and cure arises from the

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employee-employer relationship. Thus, the liability of shipowner for
maintenance and cure will be excused only by willful misbehavior or
deliberate act of indiscretion on part of seaman.
Domonter v. C.F. Bean Corp., 99-1204, pp. 17-18 (La.App. 5 Cir. 4/25/00), 761

So.2d 629, 640, writ denied, 00-1872 (La. 9/29/00), 779 So.2d 354 (citations

omitted).

Though a seaman‟s burden of proof is relatively light, an employer is

entitled to investigate a seaman‟s claim for maintenance and cure and to rely on

recognized defenses to deny benefits when appropriate. Brown v. Parker Drilling

Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005), cert. denied, 549 U.S. 952, 127

S.Ct. 382 (2006). When investigating a seaman‟s claim for maintenance and cure,

the employer is entitled to “require corroboration of the claim.” Morales v.

Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.1987) (abrogated on other grounds by

Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir.1995) (en banc). An

employer‟s “failure to pay maintenance and cure . . . is reasonable if a diligent

investigation indicates that the seaman‟s claim is not legitimate or if the seaman

does not submit medical reports to document his claim.” Id. at 1360 (footnotes

omitted). If an employer is lax in its investigation of a seaman‟s claim, it has not

satisfied its duty to investigate. Spell v. Am. Oilfield Divers, Inc., 98-498 (La.App.

3 Cir. 12/9/98), 722 So.2d 399, writs denied, 99-65, 99-74 (La. 2/26/99), 738 So.2d

587, 589, respectively. Importantly, when an employer‟s investigation of a

seaman‟s claim reveals that doubts or ambiguities exist as to whether the seaman is

entitled to maintenance and cure, “they are resolved in favor of the seaman.”

Cagle v. Harrah’s Lake Charles, L.L.C., 07-653, p. 12 (La.App. 3 Cir. 12/12/07),

974 So.2d 34, 43 (citing Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997 (1962)).

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If an employer fails to properly investigate a claim for maintenance and cure

or unreasonably rejects a claim after investigating the claim, the employer may be

liable for compensatory damages that are a consequence of the failure to pay

maintenance and cure. Vaughan, 369 U.S. 527, 82 S.Ct. 997. The employer may

also be liable for punitive damages and attorney fees if it is “more egregiously at

fault” in denying a proper claim for maintenance and cure. Morales, 829 F.2d at

1358. This higher degree of fault has been explained as “callous and recalcitrant,

arbitrary and capricious, or willful, callous and persistent.” Id. An employer‟s

failure or refusal to consider the medical evidence of an injury or illness submitted

by a seaman in support of his claim for maintenance and cure is grounds for

concluding the employer‟s failure to institute maintenance and cure is arbitrary and

willful. Holmes v. J. Ray McDermott & Co., Inc., 734 F.2d 1110 (5th Cir. 1984).2

ARTCO first argues that we must conduct a de novo review because the trial

court committed legal error. Citing Morales, ARTCO claims that because

Ms. Stermer did not report her injury when it occurred, (2) its investigation of her

claim revealed evidence that no accident occurred on October 9, 2007, and (3)

Ms. Stermer was not injured as she claimed, it cannot be held liable for penalties

and attorney fees. As discussed below, these claimed errors lack merit.

Accordingly, the trial court did not commit legal error, and we review the trial

court‟s findings of fact for manifest error.

Review of the record shows that ARTCO considered only evidence that

indicated the incident Ms. Stermer reported did not occur before denying her claim

2
Holmes’s holding that a seaman is entitled to punitive damages for an employer‟s
unreasonable refusal to pay maintenance and cure was overruled by Guevara, 59 F.3d 1496, but
in Atlantic Sounding Co., Inc. v. Townsend, 496 F.3d 1282 (11th Cir. 2007), aff’d 557 U.S. 404,
129 S.Ct. 2561 (2009), the Eleventh Circuit abrogated the holding in Guevara.

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for maintenance and cure. Mark Bartlett, an ADM adjustor in charge of

Ms. Stermer‟s claim, relied on the statements of employees that nothing happened

in the galley on October 9, 2007, without giving due consideration to evidence

corroborating the claimed incident, namely: (1) Ms. Stermer was on the vessel

twenty-four hours a day for nineteen days straight before she was injured; (2) she

performed her job duties as usual before the claimed incident without complaint

and without any physical signs of injury; (3) two bumps occurred when the vessel

faced up to its tow on October 9, as stated by Ms. Stermer; (4) Captain Jones and

Mr. Starks corroborated Ms. Stermer‟s position and location at the time she

claimed to be injured; (5) the stability and/or instability of Ms. Stermer in the

squatting position when she claimed to have lost her balance; (6) Ms. Stermer

continued to perform her regular job duties after she claimed to have been injured

before seeking medical attention and after she received medical treatment; (6) a

statement obtained from ARTCO employee, Tony Morth, on October 18 indicated

that Ms. Stermer suffered some injury while on the M/V COOPERATIVE

ENTERPRISE;3 and (7) medical evidence ARTCO received beginning October 17,

2007, and continuing thereafter, corroborated Ms. Stermer‟s claim that she suffered

injuries while aboard the M/V COOPERATIVE ENTERPRISE.

Therefore, while ARTCO had evidence indicating Ms. Stermer was not

injured as she claimed, it also had evidence supporting her claim. Moreover,

Mr. Bartlett admitted he did not know that when doubt or ambiguity exists as to the

validity of a seaman‟s claim, the law requires that the claim be resolved in favor of

the seaman. This admission together with ARTCO‟s termination of Ms. Stermer

3
In a statement dated October 17, 2010, Mr. Morth stated that he assisted Ms. Stermer
with her bags and getting into a cab when she was going to Western Baptist Hospital because of
pain in her wrists, knees, and ankles.

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shortly after she reported the incident corroborates that its investigation of the

incident ended almost immediately after Mr. Bartlett reviewed Captain Jones‟s and

Mr. Starks‟s statements without giving sufficient consideration to other facts

surrounding the incident and the medical evidence that corroborated her claim.

The totality of the evidence leads to the conclusion that once ARTCO had evidence

that no accident occurred, it did not consider evidence corroborating Ms. Stermer‟s

claim that she was injured October 9. Under these facts, we find that ARTCO‟s

investigation of Ms. Stermer‟s claim was neither diligent nor reasonable and,

therefore, find no manifest error in the trial court‟s conclusion that ARTCO was

arbitrary and capricious in denying Ms. Stermer‟s claim. See Spell, 722 So.2d 399.

ARTCO further argues that it properly denied maintenance and cure and that

its denial of Ms. Stermer‟s claim does not warrant penalties and attorney fees

because she did not reveal complaints regarding her hands wrist, fingers, and

forearms on her December 2005 pre-employment medical history form though she

reported having pain and/or numbness in those areas for four years when she

sought treatment in August 2006 for carpal tunnel syndrome.

When an employer‟s investigation reveals a “causal link” between an injury

a seaman claims occurred while in the service of the employer‟s vessel and a pre-

existing disability or illness, the employer may not be liable for maintenance and

cure under certain conditions. McCorpen v. Cent. Gulf S. S. Corp., 396 F.2d 547

(5th Cir.1968), cert. denied, 393 U.S. 894, 89 S.Ct. 223 (1968). If the employer

did not require a pre-employment medical examination, the seaman must disclose a

pre-existing condition or injury only if he believes the employer would consider it

important. Id. If a pre-employment physical is required, the denial of maintenance

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and cure is proper only if the employer proves that the seaman intentionally or

fraudulently concealed a pre-existing condition or injury. Id.

No pre-employment medical examination was required by ARTCO for

Ms. Stermer, and ARTCO has not presented any evidence showing she believed

ARTCO would have considered her complaints regarding any pain and/or

numbness in her hands, wrists, fingers, and forearms that she experienced before

October 2005 important. Indeed, she had been performing her duties as a cook on

a vessel for another company with no problems when she applied for employment

with ARTCO, and she performed the same duties for two years with no problems

for ARTCO. Furthermore, no evidence indicates that Ms. Stermer intentionally

and fraudulently concealed a pre-existing condition with her right hand from

ARTCO.

ARTCO‟s consistent refusal to pay maintenance and cure was arbitrary and

capricious and resulted in Ms. Stermer having to sell her vehicle and borrow

money to fund necessary repairs to her home and her basic living expenses.

Accordingly, we find no error with the trial court‟s conclusion that ARTCO‟s

arbitrary and capricious refusal to pay Ms. Stermer maintenance and cure warrants

the imposition of punitive damages and attorney fees.

ARTCO contends the trial court‟s award of attorney fees without evidence

of the work expended by Ms. Stermer‟s counsel in this matter was error. This

court determined in Spell, 722 So.2d 399, that evidence of what is an appropriate

award for attorney fees for a maintenance and cure claim is required. The Spell

court also determined that evidence on the issue of attorney fees is not properly

presented until a finding that an award of attorney fees is due has been made.

Accordingly, we remand this matter to allow the trial court to receive evidence of

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what an appropriate award of attorney fees is in this case and to award attorney

fees commensurate with said evidence. For these reasons, consideration of

Ms. Stermer‟s request for an increase of the attorney fees awarded by the trial court

is not properly before this court.

With regard to attorney fees for work performed on appeal by Ms. Stermer‟s

attorneys, the record demonstrates that Ms. Stermer‟s attorneys have exercised a

great amount of skill and have diligently prepared for ARTCO‟s appeal of this

case. Counsel‟s legal work before this court has been excellent. We award Ms.

Stermer $10,000.00 in attorney fees for work done on appeal. We reject ARTCO‟s

argument that attorney fees for work performed on this appeal by Ms. Stermer‟s

attorneys cannot be awarded because the work is not directed to “securing

maintenance and cure.”

The Supreme Court determined in Vaughan, 369 U.S. at 530, 82 S.Ct. at 999

(quoting Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 174

(1932), that the recovery of maintenance and cure may include “„necessary

expenses‟” including attorney fees. If a seaman must pay attorney fees to protect

on appeal her award of expenses that were required to initially secure her

maintenance and cure, the effect would be to reduce her recovery of maintenance

and cure. Accordingly, we conclude attorney fees are properly awarded for work

performed on this appeal.

Ms. Stermer requests an increase in her award of punitive damages. On

appeal, the abuse of discretion standard of review is utilized to review whether an

award of punitive damages is too high or too low. Mosing v. Domas, 02-12 (La.

10/15/02), 830 So.2d 967. An award of punitive damages is fact intensive and “the

unique province of the jury or trier of fact.” Id. at 974. Historically, these factors

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have been considered when reviewing an award of punitive damages: “(1) the

nature and extent of the harm to the plaintiff; (2) the wealth or financial situation of

the defendant; (3) the character of the conduct involved; and (4) the extent to

which such conduct offends a sense of justice and propriety.” Id. at 977.

“[E]xemplary damages serve a threefold purpose: punishment, specific deterrence,

and general deterrence. The damages awarded . . . must be reasonable in amount

and sufficient to satisfy these three objectives, but should be no more than that

required to meet these objectives.” Id. at 978.

Ms. Stermer acknowledges that the trial court considered the hardship and

harm she experienced as a result of ARTCO‟s refusal to promptly pay her

maintenance and cure but contends the trial court did not properly consider the

remaining factors. She specifically urges that the trial court should have

considered the financial situation of ADM, ARTCO‟s parent company. We have

considered the evidence Ms. Stermer presented on the factors enumerated in

Mosing and the objectives of exemplary damages. As pointed out by ARTCO, no

evidence of its profits is in the record. Additionally, while evidence of ADM‟s

profits is in the record, Ms. Stermer‟s claims against ADM were dismissed by the

trial court, and she did not appeal the dismissal of those claims. Notably, no

evidence shows the relation between ARTCO‟s earnings and profits and ADM‟s

profits. For these reasons, we find no abuse of discretion in the trial court‟s

$300,000.00 award for punitive damages.

DISPOSITION

For the reasons discussed herein, the trial court‟s determinations that

Ms. Stermer is entitled to awards of penalties and attorney fees and an award of

$300,000 in punitive damages are affirmed. The award of $150,000 in attorney

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fees is reversed, and the matter is remanded for the trial court to consider the

traditional factors pertinent to an award of attorney fees and determine the

appropriate amount of attorney fees for work performed by Ms. Stermer‟s counsel

in the trial court. Ms. Stermer is awarded $10,000 in attorney fees for work

performed by her attorneys on appeal. All costs of this appeal are assessed to

American River Transportation Company and Agrinational Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
WITH INSTRUCTIONS.

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